CORPORATE GUARANTY
Date: October 21, 1993.
GENERAL ELECTRIC CAPITAL CORPORATION
OF PUERTO RICO
450 Ponce de Leon Ave., First Floor
Torre De La Reina Building
San Juan, Puerto Rico 00901
To induce GENERAL ELECTRIC CAPITAL CORPORATION OF PUERTO RICO ("GECCPR") to
enter into the Loan Agreement executed by GECCPR and EL CONQUISTADOR PARTNERSHIP
L.P., a limited partnership organized and existing under the laws of the State
of Delaware ("Customer"), on October 21, 1993 (as the same may be modified,
amended, extended or supplemented from time to time, hereinafter referred to as
the "Loan Agreement") and purchase or otherwise acquire, now or at any time
hereafter, any promissory notes, security agreements, chattel mortgages, pledge
agreements, conditional sale contracts, lease agreements, and/or any other
documents or instruments evidencing, or relating to, any lease, loan, extension
of credit or other financial accommodation (collectively with the Loan Agreement
"Account Documents" and each an "Account Document"), but without in any way
binding GECCPR to do so, the undersigned, for good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, does hereby
guarantee to GECCPR and its successors and assigns, the due regular and punctual
payment of the lesser of $4,106,800.00 or fifty percent (50%) of the outstanding
principal of and interest on the loans granted to the Customer by GECCPR under
the Loan Agreement, however evidenced, whether it represents an original
balance, an accelerated balance, a balance reduced by partial payment, a
deficiency after sale or other disposition of any equipment, collateral or
security, or otherwise. All such obligations shall be referred to herein, along
with any other payment and performance obligation under the Loan Agreement,
whether for late charges, costs, expenses, indemnities, liquidated damages or
otherwise, as "Obligations". Undersigned does hereby further guarantee to pay
upon demand all losses, costs, reasonable attorneys' fees and expenses which may
be suffered by GECCPR by reason of the default of the undersigned.
This Guaranty is a guaranty of prompt payment and performance (and not
merely a guaranty of collection). Nothing herein shall require GECCPR to first
seek or exhaust any remedy against the Customer, its successors and assigns, or
any other person obligated with respect to the Obligations, or to first
foreclose, exhaust or otherwise proceed against any equipment, collateral or
security which may be given in connection with the Obligations. It is agreed
that GECCPR may, upon any breach or default of the Customer, or at any time
thereafter, make demand upon the undersigned and receive payment and performance
of any of the Obligations which are guaranteed hereby, with or without notice or
demand for payment or performance by the Customer, its successors or assigns, or
any other person. Nevertheless,
GENERAL ELECTRIC
CAPITAL CORPORATION
Page 2
October 21, 1993
GECCPR shall, prior to exercising any rights hereunder, be obligated to have
presented to the bank issuing the letter of credit referred to in that certain
Letter of Credit Agreement between the Customer and GECCPR dated October 21,
1993 (as said agreement may be modified, amended, extended or supplemented from
time to time), a draft drawn under such letter of credit, and have applied any
proceeds received in respect thereof to the payment of the Obligations. Suit may
be brought and maintained against the undersigned, at GECCPR's election, without
joinder of the Customer or any other person as parties thereto.
The undersigned agrees that its obligations under this Guaranty shall be
primary, absolute, continuing and unconditional, irrespective of and unaffected
by any of the following actions or circumstances (regardless of any notice to or
consent of the undersigned): (a) the genuineness, validity, regularity and
enforceability of the Account Documents or any other document; (b) any
extension, renewal, amendment, change, waiver or other modification of the
Account Documents or any other document; (c) the absence of, or delay in, any
action to enforce the Account Documents, this Guaranty or any other document;
(d) GECCPR's failure or delay in obtaining any other guaranty of the Obligations
(including, without limitation, GECCPR's failure to obtain the signature of any
other guarantor hereunder); (e) the release of, extension of time for payment or
performance by, or any other indulgence granted to the Customer or any other
person with respect to the Obligations by operation of law or otherwise; (f) the
existence, value, condition, loss, subordination or release (with or without
substitution) of, or failure to have title to or perfect and maintain a security
interest in, or the time, place and manner of any sale or other disposition of
any equipment, collateral or security given in connection with the Obligations,
or any other impairment (whether intentional or negligent, by operation of law
or otherwise) of the rights of the undersigned; (g) the Customer's voluntary or
involuntary bankruptcy, assignment for the benefit of creditors, reorganization,
or similar proceedings affecting the Customer or any of its assets; or (h) any
other action or circumstances which might otherwise constitute a legal or
equitable discharge or defense of a surety or guarantor.
This Guaranty may be terminated upon delivery to GECCPR (at its address
shown above) of a written termination notice from the undersigned. However, as
to all Obligations (whether matured, unmatured, absolute, contingent or
otherwise) incurred by the Customer prior to GECCPR's receipt of such written
termination notice (and regardless of any subsequent amendment, extension or
other modification which may be made with respect to such Obligations), this
Guaranty shall nevertheless continue and remain undischarged until all such
Obligations are indefeasibly paid and performed in full.
GENERAL ELECTRIC
CAPITAL CORPORATION
Page 3
October 21, 1993
The undersigned agrees that no payment or distribution to GECCPR pursuant
to the terms of this Guaranty shall entitle the undersigned to exercise any
rights of subrogation, contribution, reimbursement or indemnity in respect
thereof until all Obligations shall have been indefeasibly paid.
The undersigned agrees that this Guaranty shall remain in full force and
effect or be reinstated (as the case may be) if at any time payment or
performance of any of the Obligations which are guarantied hereby (or any part
thereof) is rescinded, reduced or must otherwise be restored or returned by
GECCPR, all as though such payment or performance had not been made. If, by
reason of any bankruptcy, insolvency or similar laws effecting the rights of
creditors, GECCPR shall be prohibited from exercising any of its rights or
remedies against the Customer or any other person or against any property, then,
as between GECCPR and the undersigned, such prohibition shall be of no force and
effect, and GECCPR shall have the right to make demand upon, and receive payment
from, the undersigned of all amounts and other sums that would be due to GECCPR
hereunder upon a default with respect to the Obligations.
Notice of acceptance of this Guaranty and of any default by the Customer or
any other person is hereby waived. Presentment, protest, demand, and notice of
protests, demand and dishonor of any of the Obligations, and the exercise of
possessory, collection or other remedies for the Obligations, are hereby waived.
The undersigned warrants that it has adequate means to obtain financial data
from the Customer on a continuing basis and other information regarding the
Customer and is not relying upon GECCPR to provide any such data or other
information. Without limiting the foregoing, notice of adverse change in the
Customer's financial condition or of any other fact which might materially
increase the risk of the undersigned is also waived. All settlements,
compromises, accounts stated and agreed balances made in good faith between the
Customer, its successors or assigns, and GECCPR shall be binding upon and shall
not affect the liability of the undersigned.
Payment of all amounts now or hereafter owed to the undersigned by the
Customer or any other obligor for any of the Obligations is hereby subordinated
in right of payment to the indefeasible payment in full to GECCPR of all
Obligations and is hereby assigned to GECCPR as a security therefor. The
undersigned hereby irrevocably and unconditionally waives and relinquishes all
statutory, contractual, common law, equitable and all other claims against the
Customer, any other obligor for any of the Obligations, any collateral therefor,
or any other assets of the Customer or any such other obligor, for subrogation,
reimbursement, exoneration, contribution, indemnification, set-off or other
recourse in respect of sums paid or payable to GECCPR by the undersigned
hereunder, and the undersigned hereby further irrevocably and
GENERAL ELECTRIC
CAPITAL CORPORATION
Page 4
October 21, 1993
unconditionally waives and relinquishes any and all other benefits which it
might otherwise directly or indirectly receive or be entitled to receive by
reason of any amounts paid by, or collected or due from, it, the Customer or any
other obligor for any of the Obligations, or realized from any of their
respective assets; provided, however, that such waiver and relinquishment shall
only be effective to the extent, and only to the extent, that the exercise of
any such rights by the undersigned could affect or impair any payment received
by GECCPR from Customer.
THE UNDERSIGNED HEREBY UNCONDITIONALLY WAIVES ITS RIGHT TO A JURY TRIAL OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR
INDIRECTLY, THIS GUARANTY, THE OBLIGATIONS GUARANTIED HEREBY, ANY OF THE RELATED
DOCUMENTS, ANY DEALINGS BETWEEN US RELATING TO THE SUBJECT MATTER HEREOF OR
THEREOF, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN US. THE SCOPE
OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT
MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT
CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS).
THIS WAIVER IS IRREVOCABLE MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR
IN WRITING, AND SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS
OR MODIFICATIONS TO THIS GUARANTY, THE OBLIGATIONS GUARANTIED HEREBY, OR ANY
RELATED DOCUMENTS. IN THE EVENT OF LITIGATION, THIS GUARANTY MAY BE FILED AS A
WRITTEN CONSENT TO A TRIAL BY THE COURT.
As used in this Guaranty, the word "person" shall include any individual,
corporation, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization, or any government or any political
subdivision thereof.
This Guaranty is intended by the parties as a final expression of the
guaranty of the undersigned and is also intended as a complete and exclusive
statement of the terms thereof. No course of dealing, course of performance or
trade usage, nor any paid evidence of any kind, shall be used to supplement or
modify any of the terms hereof. Nor are there any conditions to the full
effectiveness of this Guaranty. This Guaranty and each of its provisions may
only be waived, modified, varied, released, terminated or surrendered, in whole
or in part, by a duly authorized written instrument signed by GECCPR. No failure
by GECCPR to exercise its rights hereunder shall give rise to any estoppel
against GECCPR, or excuse the undersigned from
GENERAL ELECTRIC
CAPITAL CORPORATION
Page 5
October 21, 1993
performing hereunder. GECCPR's waiver of any right to demand performance
hereunder shall not be a waiver of any subsequent or other right to demand
performance hereunder.
This Guaranty shall bind the undersigned's successors and assigns and the
benefits thereof shall extend to and include GECCPR's successors and assigns. In
the event of default hereunder, GECCPR may at any time inspect the undersigned's
records, or at GECCPR's option, the undersigned shall furnish GECCPR with a
current independent audit report.
If any provisions of this Guaranty are in conflict with any applicable
statute, rule or law, then such provisions shall be deemed null and void to the
extent that they may conflict therewith, but without invalidating any other
provisions hereof.
This Guaranty, its interpretation and application, will be subjected in all
respects to the laws of the Commonwealth of Puerto Rico, its interpretive case
law and jurisprudence.
Each signatory on behalf of a corporate guarantor warrants that he has
authority to sign on behalf of such corporation and by so signing, to bind said
guarantor corporation hereunder.
IN WITNESS WHEREOF, this Guaranty is executed the day and year above
written.
WILLIAMS HOSPITALITY
MANAGEMENT CORPORATION
By:/s/
---------------------------------
(Signature)
Title:
---------------------------------
(Officer's Title)
ATTEST:
- -------------------------------------------
Secretary/Assistant Secretary
GENERAL ELECTRIC
CAPITAL CORPORATION
Page 6
October 21, 1993
Affidavit No. 021
Subscribed and acknowledged before me in San Juan, Puerto Rico, this 21st
day of October, 1993, by the following person who is personally known to me:
Manuel Peredo, of legal age, married, businessman and resident of San Juan,
Puerto Rico, in his/her capacity as Vice President of Williams Hospitality
Management Corporation.
/s/
------------------------------------
Notary Public
GUARANTOR'S
CONSENT TO AMENDMENT TO LOAN AGREEMENT
Dated as of June 30, 1994
The undersigned, WILLIAMS HOSPITALITY GROUP INC., previously Williams
Hospitality Management Corporation, a Delaware corporation, as Guarantor under
the Corporate Guaranty dated October 21, 1993, (the "Guaranty") in favor of
GENERAL ELECTRIC CAPITAL CORPORATION OF PUERTO RICO ("GECCPR"), party to the
Loan Agreement referred to in the foregoing Amendment, hereby consents to the
said Amendment and hereby confirms, clarifies, and agrees that (i) the Guaranty
is, and shall continue to be, in full force and effect and is hereby ratified
and confirmed in all respects except that, upon the effectiveness of, and on and
after the date of, the said Amendment, the undersigned shall guarantee to GECCPR
and its successors and assigns, the due regular and punctual payment of the
lesser of $4,106,800.00 or fifty percent (50%) of the outstanding principal of
and interest on the Loans granted to El Conquistador Partnership L.P. by GECCPR
under the Loan Agreement, as amended pursuant to the foregoing Amendment; and
(ii) each reference in the Guaranty to the Loan Agreement or the Loan Documents
or to "thereunder," "thereof" or words of like import shall mean and be a
reference to the Loan Agreement or the Loan Documents as amended by the
Amendment, and any reference in the Guaranty to "this Guaranty" or words
referring thereto shall mean and be a reference to the Guaranty as amended by
the Amendment and by this Consent.
WILLIAMS HOSPITALITY GROUP INC.
previously Williams Hospitality
Management Corporation
By: /s/
------------------------------------
Name: Manuel Peredo
Title: Vice President
Affidavit No.: 099
Acknowledged and subscribed before me in San Juan, Puerto Rico this 30th
day of June, 1994, by the following person who is personally known to me: Manuel
Peredo, of legal age, married, and resident of San Juan, Puerto Rico, in his
capacity as Vice President of Williams Hospitality Group Inc.
/s/
----------------------------------------
Notary Public